October 1st was the first day for new H-1B holders to start working. Roughly 36 percent of companies wait to start the green card petition process for sponsored employees until after a year of employment. However, allowing for immediate green card sponsorship might be part of the immigration policy at your organization, since in some cases it’s a strategy to attract foreign talent. If you have a policy that allows for immediate sponsorship, you’ll need to take a few steps to get your new employee started on the journey from H-1B to a green card.
You should expect the process to take anywhere from months to years, depending on each step of the process, so patience – and communication with your employee and legal team – is critical.
Step 1: Begin the PERM labor certification with prevailing wage
To start the PERM (Program Electronic Review management) process, which is necessary for some EB-2 and all EB-3 green cards, a prevailing wage determination must first be made to the Department of Labor (DOL) for the position offered to the foreign national, who may or may not already be an employee. The law requires that the wages offered to a sponsored foreign national must be no less than the “prevailing wage,” or the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. In the request, the employer provides the DOL with key items regarding job requirements and duties and the worksite location. After the DOL determines the prevailing wage, going forward the employer will have to offer whatever is higher: the initially offered salary or the prevailing wage. If the prevailing wage is higher than the initially offered wage it is important to keep in mind that this higher salary may not go into effect immediately. As this is employment is contingent upon obtaining the green card it is a future offer employment. Accordingly, the employer may not be required to pay this higher wage until the green card is actually issued by USCIS, so some employers may not be required to pay this higher salary for many years. If the employer is concerned about their ability to pay the prevailing wage they should speak with their attorney to discuss when this wage is estimated to go into effect for the particular case and what alternative sponsorship options may be available.
Step 2: PERM Recruitment
Employers are also required to execute a detailed recruitment plan to prove that they have thoroughly searched and no U.S. worker meeting the minimum requires for the job was available and willing to take the position. The DOL sets specific requirements for PERM recruitment dictating how, where and for how long different advertisements must run. Employers should expect to advertise in Sunday newspapers, in the state workforce agency, internally at their company, in addition to taking other required steps which may include job fairs, radio advertisements or job search websites.
Step 3: PERM Application for Employment Certification (ETA Form 9089)
When prevailing wage and recruitment steps have been completed, and no available U.S. worker has been identified, the employer’s attorney will submit a summary report of the steps taken on ETA Form 9089 through the attorney’s i-Cert Portal to the DOL. This form is the Application for Employment Certification, and it also includes information about the sponsored foreign national. The DOL will review the steps taken and either certify (approve) the application, deny it or issue a Notice of Audit. If the application is audited or denied, your attorney will have an opportunity to respond to any concerns the DOL may raise.
Step 4: Immigrant Petition for Alien Worker (Form I-140)
Once the ETA Form 9089 is certified by DOL, the employer then has to file Form I-140, Immigrant Petition for Alien Worker, to USCIS. Depending on the foreign national’s priority date, this step may be combined with the last and final step described below. If the priority date is current the I-140 may be filed concurrently with the I-485. If the priority date is not current the I-140 must be filed alone.
Step 5: Adjustment of Status (Form I-485)
The Adjustment of Status is the last part of all green card processes. Form I-485, the Adjustment of Status, must be filed with USCIS to complete the process. Once the form has been approved, the employee will be issued a green card to indicate a successful change in status from H-1B to permanent resident.
For more information on the transition from H-1B to green card, read Envoy’s Green Card Tips and Tactics.
Envoy is pleased to provide you this information, which was prepared in collaboration with Sara Herbek, who is the Managing Partner at Global Immigration Associates, P.C.(www.giafirm.com), Envoy’s affiliated law firm.